The statute authorizes constables who have taken property in execution, (29 O. L. 184) to leave it in the possession of the defendant, taking security for his own indemnity. The receipt or bail is his security; he is the sole judge of it. He does not continue to hold the possession, nor can he retake the property and sell, unless returned to him. There is no continued constructive possession. His remedy is on the receipt. In this, the plaintiff made no case to recover. There was no evidence, either, of an actual conversion; for, the time Andrews had a right to use, they were his oxen; they might never again be in a situation for the constable to possess them. If his possession, then, were held constructively to continue, Baker was under no obligation to take the cattle to him, and he should have proven at least a demand and refusal to show a conversion. The court below, in our opinion, were right in ordering a non suit; but they erred in yielding to the refusal of the plaintiff to submit to the order, and then instructing the jury to find for the defendant, instead of submitting the cause to them on the evidence. The declaration is bad, as it alleges no conversion. The judgment is, therefore, reversed, and the cause remanded for further proceedings.